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The Lowell Mountain wind towers as seen from Irish Hill. Photo by Bethany M. Dunbar

by Paul Lefebvre

copyright the Chronicle 12-12-2012

NEWPORT — A utility wind developer company that tried to do the right thing by the press appears to have shot itself in the foot when it allowed the arrest of a reporter and then failed to step forward and rectify an action contrary to company policy.

The Orleans County state’s attorney’s office last week dismissed a criminal charge of unlawful trespass brought against Chris Braithwaite, a reporter for and publisher of the Chronicle in Barton.

Mr. Braithwaite, who had been spearheading his paper’s coverage of the wind project on Lowell Mountain and the controversy it triggered, went to the site on December 5, 2011, to cover a demonstration that protesters had scheduled for the morning.

Police intervened and arrested six protesters, who became known as the Lowell Six. A jury found each of them guilty of unlawful trespass this summer. Mr. Braithwaite also was arrested despite his claims he only had gone to the site to cover the demonstration as a reporter.

When news of his case’s dismissal was announced last week, Mr. Braithwaite, 68, of West Glover, released the following statement:

“On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism. What remained was the daunting task of demonstrating that it was also within the law. That task came to a successful conclusion today.”

Dismissal came as the case was preparing to go to trial and after defense attorney Phil White subpoenaed internal e-mails that passed back and forth among officials of Green Mountain Power Company (GMP.)

The documents show that GMP intended to give Mr. Braithwaite and other reporters access to its Lowell Mountain site, where protesters were demonstrating against the construction of a 21-turbine wind project.

“Does anyone know what happened,” asked Robert Dostis, a GMP official who works with communities and who was responding to colleagues about an editorial against the arrest.

To GMP’s site manager at Lowell Mountain, he went on express surprise that an arrest had occurred.

“Frankly, I don’t understand why Chris was arrested since you gave exact instructions that he not be,” he wrote in an e-mail dated December 10.

A day later, a second official struck a similar note.

“I think now we have to put an end to the notion we tried to stop the media, when we simply did not,” wrote a GMP consultant Stephen Terry in an internal e-mail sent six days after the arrest.

He then repeated a question asked earlier by the company’s public relations officer: “Did the leadership instruction not to arrest CB just not get relayed fast enough Monday morning?”

While release of the e-mails helped to end the criminal charge, they may have opened a new chapter in the case.

Attorney White said Monday he had asked for an apology from GMP as well as compensation for expenses and legal fees that came to $22,330.

“Had Green Mountain Power disclosed this information to the State Attorney’s Office promptly, Chris never would have had to undergo a year facing criminal charges,” wrote Mr. White in an e-mail.

“Instead, GMP sat on its hands and did nothing, absolutely nothing.”

Mr. White said he hoped that GMP would “do the right thing” by apologizing and paying Mr. Braithwaite.

But that appeared unlikely Tuesday.

GMP Public Relations Officer Dorothy Schnure said that it was Mr. Braithwaite’s refusal to leave the site that caused him to be arrested. And once an arrest occurred, it was out of GMP’s hands.

“It’s not our case, it’s the state’s,” she said, adding later: “While we had hoped he wouldn’t be arrested, that’s what played out.”

She declined to comment Tuesday if the company had received Mr. White’s request of GMP to pay for his client’s legal fees and expenses.

In an e-mail later in the day Ms. Schnure stated:

“Frankly, the proposition that David Coriell acted inappropriately and that it gives grounds for a legal claim by Chris Braithwaite is frankly frivolous.”

On Monday Judge Howard VanBenthuysen, who presided over the case, released some of the documents, which had been sealed under an agreement between the defense and prosecution.

The judge noted they had been submitted in support of the defense motion to dismiss with prejudice and were now part of the public record.

He also said he would not rule on the motion to dismiss the case with prejudice until the state had a chance to respond. If a case is dismissed without prejudice, the state can bring it again. He set a deadline of December 26 for the prosecution to respond.

Deputy State’s Attorney Sarah Baker said in an interview Tuesday she would file a response opposing the motion because there is still evidence available that would enable the state to win the case.

She said her motion would also explain why the state dismissed the charge, adding that her office did not want to inconvenience a witness and former employee of GMP who has since moved from Vermont. Ms. Baker also said there were documents in the file that had not been unsealed and that would help the state prove its case, in the event it was brought back.

The documents that came to light this week indicated that the state’s dismissal may have hinged on the failure of a GMP employee at the scene on the day of the arrest to correctly inform police officers of the company’s policy toward arresting Mr. Braithwaite and any other journalists covering the protest.

As GMP officials scrambled to learn what had happened, David Coriell, its representative at the site during the protest, tried to explain to his bosses in two e-mails why the arrest had occurred.

The first e-mail sent on the day of the arrest stated: “Braithwaite and another woman stopped at the edge of the construction site and started taking pictures. Phil Brooks, the Orleans Co. Chief Deputy, asked Braithwaite and the woman to get back another 50 feet to the Nelson property. The woman complied. Braithwaite chose to stay. Brooks approached Braithwaite and after a short conversation he asked him to leave or come back and stand with those willing to be arrested. Braithwaite walked back and stood with those being arrested.”

In the second e-mail, dated December 11, Mr. Coriell told his bosses that the no-arrest instructions “didn’t get relayed to all the officers involved.

“That said, I know the Sheriff had no intention of arresting Chris. Chris actually arrested himself by physically walking back to the middle of the crane path.”

He went on to say that Mr. Braithwaite called the officer an expletive. The officer charged that the reporter had stepped “over a professional line.”

Ms. Schnure said Tuesday the scene that day at the site was confusing, with cell phones losing signal and people milling around. She called the arrest Tuesday “a breakdown in communications.”

Concerned that another protest at the mountain was coming, GMP officials huddled and considered what they should do about access and the press, and what instructions to give the police. An e-mail from Ms. Schnure to GMP managers on December 11 laid out a possible course of action.

“Dave confirm that sheriff will be there early if at all possible. Ensure sheriff knows media has permission to be there. Tell Sheriff we really don’t want any reporters arrested.”

Mr. Terry, the consultant, agreed, calling the proposed instructions “a good way to pre-empt another journalism arrest which was never our intent or purpose here.”

While it is still unclear how far the documents went in convincing the state to dismiss the charge, they did provide a picture of GMP managers working to ensure similar arrests of reporters would not occur at future demonstrations.

“We have to minimize the public and political fallout of decisions made on the mountain,” wrote Mr. Dostis in a December 10 e-mail.

“Arresting reporters will do more harm than good.”

Ms. Schnure said repeatedly Tuesday that it was Mr. Braithwaite’s actions that caused his arrest. And that he was not owed an apology by GMP.

On the day after my arraignment on a charge of unlawful trespass, I wrote that I believed my conduct on Lowell Mountain on December 5, 2011, satisfied the dictates of common sense and the ethics of journalism. What remained was the daunting task of demonstrating that it was also within the law. That task came to a successful conclusion today.

It is my hope that journalists who find themselves in a similar situation will bear this case in mind when they are ordered to leave the scene of important public event.

And I hope that police officers will bear this case in mind, when they encounter journalists at the scene of significant public events who are just trying to do their job.

I regret that the documents which would help to explain the state’s decision to dismiss my case remain under court seal. The Chronicle has asked the court to release these documents, and I hope that my colleagues in journalism will join me in an effort to make this information public.

Below is the story that ran in the newspaper this week (printed in the morning just before the case was dismissed):

by Paul Lefebvre

copyright the Chronicle December 5, 2012

NEWPORT — A jury has been picked for the trial of Chronicle publisher Chris Braithwaite who was arrested as a reporter covering a wind protest on Lowell Mountain roughly a year ago.

The trial is scheduled to start next week on Thursday, December 13, and is expected to last a day.

The trial’s start-up date may be delayed due to a motion filed Tuesday by defense attorney Phil White, asking the charges be dismissed for lack of evidence.

The evidence offered in support of the motion has been largely redacted as a result of the court’s protective order on internal GMP documents subpoenaed by the defense.

Mr. Braithwaite, 68, of West Glover is accused of unlawful trespass for allegedly refusing to obey a police order to leave a mountaintop site while covering demonstrating protesters on December 5, 2011.

Known as the Lowell Six, the protesters were demonstrating against a 21-turbine wind project being built by the utility Green Mountain Power (GMP). A jury this summer found each of the protesters guilty of unlawful trespass.

Mr. Braithwaite was arrested on the same day and at the same place as the protesters. But the two cases went their separate ways over an issue whose resolution still remains uncertain.

Presently pending before the court is the issue of whether Mr. Braithwaite will be tried as a private citizen or as a member of the working press who was arrested while doing his job.

Since his arraignment last December, Mr. Braithwaite has asserted that he had only gone to the mountain that day to do his job as a reporter.

Early in the case, Mr. White tried to get the charge thrown out on constitutional grounds, arguing that Mr. Braithwaite had gone to the mountain as a journalist “to cover a protest.”

And as a member of the working press he “should enjoy a special right and privilege under the First Amendment of the United States Constitution to cover protest on private property and the government response,” argued Mr. White.

Mr. White was unable to cite any case law in support of his privilege argument and his motion failed.

“There is no legal authority” that gives a member of the working press “privilege to trespass on private property,” wrote Judge Robert Gerety Jr.

Last week, however, the argument was rekindled as both sides prepared for trial before a new judge who recently began his term in Orleans County Superior Court.

Judge Howard VanBenthuysen is expected to rule on a motion this week that will determine if jurors will get to hear defense arguments that a working reporter has special privileges when it comes to gathering news.

Mr. White has put the names of two Northeast Kingdom journalists on his witness list: Ross Connelly, publisher of the Hardwick Gazette; and Robin Smith, a reporter for the Caledonian-Record.

The state, in turn, has asked the court to strike the two journalists from the list.

Prosecutor Sarah Baker wrote in her motion that neither individual “was a witness present at the time of the offense.”

A deputy state’s attorney with the county, Ms. Baker has asked the court “to exclude any witness whose testimony is offered solely as evidence of a privilege or right of press to be on private property without permission to report on a state response.”

While the judge’s decision is still pending, he did allow Mr. White during last Friday’s jury draw, November 30, to question prospective jurors over how they view the press’s role in a democracy.

For example, the defense attorney asked one juror how important it is for the press in a democracy to report the news.

“I feel strongly that the press have an important role in the democratic process,” she replied.

One juror said she often found the news coverage “very biased.”

But another who was the subject of a news story disagreed.

“They wrote what they saw fit, and I liked what they did,” he said.

Support among members of Mr. Braithwaite’s profession has been slight, with the exception of two Northeast Kingdom newspapers.

Mr. Connelly, who publishes the Hardwick Gazette, spoke out strongly immediately after the arrest in an editorial that said the press must have access if it is to report the news.

“Had Braithwaite not been at the protest site, the press would not have been able to report on the behavior of the protesters or the… police enforcing a public trespass order, sanctioned by the state courts and enacted by the State legislature.”

Mr. Connelly ended the editorial by saying officials were undermining the democratic process “when they sanction the arrest of journalists for doing their jobs.”

Vermont Press Association Executive Director Mike Donoghue acknowledged in an e-mail Tuesday that the arrest could have a chilling effect on the ability of the press to gather news.

“The press has the responsibility to report the news as it happens,” he said. “The public, who can’t always be present, expects us to be their representatives monitoring government in action. And that is a privilege.”

Caledonian-Record publisher Todd Smith suggested in an interview last Friday that regional bias may have played a role in the lack of attention the case has received. He said around the state the Northeast Kingdom is seen as the “red-headed stepchild” and that the Vermont media in general were “a little busted” as a professional organization.

“I support Chris’s principles in going after this, and avoid agreeing to any plea,” said Mr. Smith. “Journalists have to get access to a site and bear witness to do their job.”

Questions about access to the site and GMP’s role with the press may come to light during the trial, or even sooner.

Last week the court signed a protective order that allows only the prosecutor and the defense to see confidential communications between GMP and others regarding the Lowell Mountain project.

Among other communications, the material to be examined includes documents and internal e-mails created between September 1, 2011, and January 31, 2012, pertaining to “press access or arrest of trespassers on the Project property.”

As a result of the defense request, GMP is required to turn over any documents mentioning Mr. Braithwaite or the Chronicle.

Mr. Braithwaite editorialized repeatedly against the project in his paper. According to the protective order, GMP received the paper during the September and January time frame.

What the documents and e-mails say may be revealed if Mr. White prevails in his pre-trial motion to dismiss the charge against his client.

“Based on their obvious relevancy and the lack of any corporate interest to keep them sealed, we would respectfully request that they be unsealed by order of the court,” he wrote in his latest motion that was filed this week.

That request exists alongside with another, asking for a pre-trial evidentiary hearing in which GMP officials would be required to give testimony.

The attorney also renewed an earlier argument that dismissal of the charge would be in the interest of justice.

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Statement from attorney Phil White, Esq.:

I’m pleased and thankful that this case has been dismissed by the Orleans County State’s Attorney’s Office. Anytime a reporter is arrested while covering the government’s arrest of protesters, it is a serious matter. It raises fundamental concerns about the freedom of the press to act in its constitutionally recognized role as The Fourth Estate.

We have argued that when property rights clash with First Amendment Rights of the working press (particularly when it is acting as the Fourth Estate covering transactions of government), a balancing test should be applied (as it often is when constitutional interests collide). That issue will not be reviewed in this case any further. Chris Braithwaite and The Chronicle, to their credit, were fully prepared to seek review of any conviction by the Vermont Supreme Court and even The United States Supreme Court. It has been an honor to represent him. And, I hope this discussion will continue.